The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

D. Early Resolution Mechanisms

Recommendation Seventeen: Case Management Teams

Where appropriate to the local jurisdiction, the Steering Committee recommends that dedicated case management teams be established within each Crown Attorney's office. Where dedicated teams are not feasible, it is recommended that vertical file management procedures be developed to promote Crown ownership and accountability over files.

Some of the prosecutors consulted on this recommendation found it to be too general, imprecise and unworkable in large intake courts at current resource levels. On the other hand, Quebec prosecutors noted most of their offices (but not Montreal) use the “ poursuite verticale [vertical prosecution] system ” which, in principle, assigns the same prosecutor to every stage in the life of a charge, from authorizing the charge to the appeal. This approach has yielded significant efficiency improvements. Those jurisdictions that have implemented vertical prosecution systems noted that judicial and court services collaboration is critical for the successful continuity of files.

Recommendation Eighteen: Early And Meaningful Charge Screening

The Steering Committee recommends that dedicated Crown case management teams, or their alternatives, screen files in a meaningful way and in accordance with any relevant Ministry policies. It is also recommended that the Crown case management teams, or their alternatives, should ensure the following tasks are completed prior to first appearance court:

It is acknowledged that in complex cases more time will be required in order to complete each of these responsibilities. The recommendation enjoyed broad based support during the consultation process. A number of commentators were of the view that cases are frequently “ dragged out ” by disclosure issues and the failure of Crown counsel to advance a clear position on sentence in the event of a guilty plea. A member of the defence bar suggested that over-charging by the police also slows the progress of a case with time and effort being required to negotiate a reduced charge with the Crown.

Recommendation Nineteen: Case Conferences between Crown and Defence Counsel

The Steering Committee recommends that case conferences between counsel for the Crown and defence take place to see if the case can be resolved, the issues narrowed or defined or the need for a judicial pre-trial hearing eliminated.

Early and meaningful consultation between Crown and defence counsel prior to setting a matter down for trial or preliminary hearing can play an important role in ensuring that the parties determine what can be agreed upon and what can be settled as early in the process as possible.

Recommendation Twenty: Judicial Pre-trials

Judicial pre-trials will be appropriate in the following circumstances:

Judicial pre-trials take different forms across the country. In some jurisdictions, they only address procedural matters while in other jurisdictions both procedural and substantive issues are addressed at the judicial pre-trial. They should be scheduled at a time convenient to both the defence and to the case management Crown with carriage of the case where feasible. To obtain maximum benefit from a judicial pre-trial, the judge who conducts the pre-trial should not be the trial judge. In order for judicial pre-trials to be meaningful, sufficient time should be allocated for each individual pre-trial to canvass relevant issues and accommodate guilty pleas in special circumstances. It is also important that the pre-trial be confidential. Pre-trial meetings, with or without a judge present, are only effective if both counsel attend with specific goals and objectives. Meeting for the sake of meeting is counter productive. Counsel must attend with a view to resolve the case, narrow and define the issues, or otherwise move the case forward. The meeting must have a concrete purpose.

A number of commentators expressed concern about the lack of any mention of judicial responsibility for case management in the recommendation and, in particular, the need for judges to hold counsel to existing rules of court or practice directions imposing deadlines. The absence of any reference to the obligation on counsel to give timely notice of Charter and other motions was seen as particularly problematic. However, one commentator objected to being “ forced ” to meet with a judge and found the tenor of the recommendation incompatible with the adversarial nature of our criminal justice system. There was general agreement that a judicial pre-trial system will only be effective if the parties voluntarily enter into resolutions and agreements. The pre-trial judge has an obligation to see if he or she can “ get the parties together ” but not to impose a resolution or agreement by coercion.

Recommendation Twenty-One: Judicial Pre-trial Assignments

The skills that make an effective trial judge are not necessarily the same skills that make an effective pre-trial resolution judge. Judges interested in broadening their early resolution skills should be encouraged to do so.